There is perhaps no greater cliché in modern state constitutional convention politics than that past constitutional conventions, such as Hawaii’s last constitutional convention in 1978, belonged to a golden age of politics that has since been corrupted. But treating the last constitutional convention with the same hagiography as Moses receiving the Bible from God on Mt. Sinai poses a difficult question: if the last convention was so great, why won’t the next one also be great? The answer that con-con opponents promote is that politics has been corrupted since that golden age.

Before and After Views of Hawaii’s 1978 Constitutional Convention

Consider a recent op-ed by the Executive Director of the Hawaii Government Employees Association (HGEA), the lead financier and organizer of the current coalition opposed to calling a convention:

Those who want a ConCon argue that the 1978 Convention was a watershed moment in Hawaii politics, producing progressive policies that we can expand upon; therefore we should not shirk from the chance to re-write our Constitution for the better. That argument would hold if our politics was not in the dire state it is in today: if this era of Citizen’s United and unlimited Super PAC money did not have the means to overwhelm our democracy with their dollars….

When you receive your ballot, consider this: Is convening a ConCon the best way to spend $55 million of our taxpayer money? Can we ensure that there will be no outside interests buying our state?.... Is the risk of losing all of our protections worth the diminutive possibility to gain more?

Consider also a recent op-ed by the Treasurer of the Hawaii State Teachers Association (HSTA), the lead financier and organizer of the last No Coalition in 2008 when the convention referendum was last on the ballot:

To protect Hawaii’s future, voters should reject a Constitutional Convention at the ballot box this year…. If voters approve a so-called “ConCon” at a time when corporate cash is flooding our election system, the results could be catastrophic for working families, Native Hawaiians, and the environment…. One of the primary goals of these business interests is repealing collective bargaining protections, which they have already begun to achieve through the U.S. Supreme Court….

Previous Constitutional Conventions were held to address clear political needs…. [I]n 1978, a convention was coordinated to reflect upon the disparate treatment of Native Hawaiians, how to balance environmental preservation with growing urban development, and whether or not to create term limits for the governor and lieutenant governor.

[V]oters should oppose a ConCon this year…. [Italics added]

Now compare such views to those held by the Hawai`i State AFL-CIO in 1978, when it had a far more negative take on the 1978 constitutional convention before it convened. HGEA and HSTA are affiliates of the AFL-CIO, which is a collection of other unions. Over recent decades, the AFL-CIO has been a leading member of no coalitions.

A pamphlet from one of the most influential AFL-CIO advocates in 1977 proclaimed that the 1978 convention would favor out-of-state big business and undermine Hawaii values. In the pamphlet, titled “Palaka Power,” he contrasts the golden age of the last convention in 1968 with the expected high cost and corruption of the 1978 convention. The unions had gotten the key constitutional protections they wanted from the 1968 convention.

The 1968 Convention

In 1968, a constitutional convention was held…. Economically, the delegates were close to labor, especially the ILWU…. They believed in the rights of workers…. They believed in human rights…. Those were the forces who controlled the convention….

The Grim Future: The 1978 Con-Con

There will be a constitutional convention in 1978. It will cost at least $3.5 million [the actual figures was $2.03 million]…. Hawai`i is now the captive of multi-national conglomerates operating out of Tokyo, Hong Kong, San Francisco, New York. No union or political party has much of a chance to deal with them effectively. With this knowledge, Big Business is beginning to flex its dormant muscles once again….

The con-con, therefore, is likely to be anti-union. This would fit well with Big Business and even the media who have never been known to be on the side of labor….

[T]he agenda for the Con-Con will not be a discussion of the liberals’ program, but a discussion and passage of the reactionary program of anti-abortion, death penalty, anti-labor measures, and removal of the ERA [Equal Rights Amendment] from the Hawai’i Constitution.

The Present Is Different Rationale

Opponents claim that the 1978 convention occurred in the wake of Watergate when there was a spirit of democratic reform in the air. Opponents further claim that today the situation is totally different, as we have a political system dominated by corrupt special interests that have led to Washington’s corruption and will somehow also lead to the corruption of a future Hawaii convention. The opposition made similar arguments before the last two Hawaii State Constitutional Convention referendums in 2008 and 1998.

A longtime variation of this cynical argument is to ignore the veneration the people of Hawaii have for their last constitutional convention in 1978 and instead simply assert that a future convention would be controlled by dark outside forces that would hoodwink the voters into voting for convention-proposed amendments against their own self-interest. This argument is employed in the No Coalition’s most recent 30-second TV ad.

While it is true that the early 1970s was an unusual era of democratic reform, so is today, when numerous polls show that the American people, regardless of party affiliation, believe that our democratic system of government is broken. For example, only 21% of Hawaii voters approve the job the State Legislature is doing. That’s lower than the lowestapproval rating of any U.S. president between Harry Truman and Donald Trump, and only 44% of the average 47% approval rating of the last four U.S. presidents from Ronald Reagan through Barack Obama. Trump currently has a 28% approval rating in Hawaii, 33% higher than the State Legislature.

Of course, it is not always true that people who are dissatisfied will take steps to address the root cause of their dissatisfaction. But it was true, contrary to the opposition’s arguments, that Hawaii’s last constitutional convention in 1978 occurred when the public had low government approval, not the opposite. In 1978, public approval of government was 31%--a historic low--down from 73% when Hawaii got its first Constitution in 1959. Today, it is down to 18%, only 1% above its recent new historic low.

Today, the spirit of democratic reform appears as strong or stronger than it was in 1978, albeit centered in places where people have the citizen initiative. Like Hawaii’s periodic state constitutional convention referendum, the citizen initiative allows the people to bypass a legislature’s veto power over popular democratic reforms like state legislative term limits. But whereas this year the periodic state constitutional convention referendum is only available in Hawaii (fourteen states have it, but most only once every twenty years), this year, as every year, the citizen initiative is available in 24 states.

Disgust with federal politics, including a dysfunctional Congress, has led to extraordinary bi-partisan efforts to unrig the system in U.S. states where the citizen initiative is available. Under the rubric “People vs. Politicians,” democratic reform groups, mostly led by progressives, have shifted their focus from the national to local level and from lobbying legislatures to passing citizen initiatives.

Consider the number of state citizen initiatives dealing with democratic reforms. The National Conference of State Legislatures has collected data on citizen initiatives concerning democratic reforms including ethics, lobbying, campaign finance, and redistricting. Between 1976 and 1978 there were only 5 such referendums. In contrast, between 2016 and 2018, the so-called Trumpgate Era, there were 21 such referendums, including 12 in 2018 alone. Even during the entire seven-year stretch from 1972 to 1978, the opposition’s presumed Watergate Era, there were only 15.

And even at the national level, an extraordinary whiff of change is in the air. According to the Washington Post, there are currently 70 members of Congress that were elected in 2016 and are not on the 2018 general election ballot, more than at any time since 1994.

As in 1978, convention opponents in 2018 have argued that special interests will use their financial muscle to convince voters to vote against their own self-interest when asked to vote up or down the proposals that a convention places on the ballot. But they have not provided a single example to back up this claim from either Hawaii’s three state constitutional conventions or the many conventions in other states since Hawaii was founded. The reason is that the track record of state conventions is to increase, not decrease, the people’s democratic rights. That, after all, is why the most powerful special interests are so fearful of them.

To be sure, the power of money in ballot referendums should be a concern, but not in the way opponents imply. Money is far more effective in defending than changing the status quo; that is, it is far more effective in making voters uncertain and fearful of proposed reforms than in getting them to give up rights that they have grown to cherish. And, as I have argued elsewhere, to assert that voters cannot be trusted to approve constitutional amendments in their own self-interest is to attack the foundation of America’s system of state constitutional democracy.

Americans’ proven reluctance to give up their rights helps explain why Hawaii state constitutional conventions have consistently done far more to enhance than restrict rights. At the federal level, the only constitutional amendment restricting rights was Prohibition, and that was later overturned. In Hawaii, former governor and 1978 constitutional convention delegate John Waihe‘e III has observed that its 1978 constitutional convention did far more to expand the people’s rights than the State Legislature in the subsequent forty years.

As for the intellectual capacity of the people to vote in their own self-interest on constitutional amendments--the premise, as noted above, on which constitutional democracy is built--the people of Hawaii are better educated than ever before. For example, per pupil public school expenditures increased in real terms by 92% from the last convention in 1978 to the most recent year with available data, 2016. The increase from 1959, when the people approved Hawaii’s first Constitution, is 521%. Other indicators of education quality endorsed by convention opponents, including graduation rates, highest education attained, and reduced inequity, have also dramatically improved.

False Nostalgia for Hawaii’s 1978 Constitutional Convention

Not all of the opposition’s nostalgia for Hawaii’s 1978 constitutional convention is warranted. Perhaps the biggest fallacy is that there was substantial and accurate public discussion of what the 1978 convention would propose prior to the people approving a referendum to call the convention. In reality, such discussion only came after the public voted to call the convention.

The same pattern of public deliberation occurred with America’s most famous and worshipped constitutional convention, its 1787 convention. There was very little public discussion before the convention was called and even during its deliberations. George Washington, later to be elected the convention’s president, asserted little more than that he hoped the convention’s deliberations “could show the way forward.” The great public discussion, most famously recorded in The Federalist Papers, occurred after the convention when the public was asked to ratify its proposals.

It is unrealistic, undesirable, and ahistorical to expect the public to have a substantial and accurate discussion of a convention’s final proposals before they are asked to vote on whether to call one. Such discussion is most directly the public’s job during the third stage of the convention process, when they are asked to approve or disapprove a convention’s proposals. Such discussion is more indirectly the public’s job during the second stage of the convention process, when they are asked to vote for delegates aligned with their own interests and capable of formulating such proposals on their own behalf. Such discussion is least directly the public’s responsibility during the first stage of the convention process, when they are asked whether they want to call a convention.

Just like newspapers that see their job as reporting on government failures (stage 1) that politicians are then tasked with solving (stage 2) and face accountability for not solving (stage 3), the only realistic job of the people in the first stage of the convention process is to determine that there are substantial constitutional deficits that the convention process could address, as it did in 1978. Public discussion of the details not only must but should be left to stages two and three of the process.

Conclusion

In 1978, the level of dissatisfaction with democratic dysfunction was high. But the level of dissatisfaction is even higher today. So too is the intensity of democratic reform initiatives in states with the citizen initiative. Dissatisfaction with the status quo is a good omen for the success of a convention, not a bad one. If Hawaii does call a convention that makes proposals voters approve, one thing is certain: future advocates of the status quo will come to look at 2018 as a golden age to look back at with nostalgia. They will likely be wrong, just as the 1978 convention opponents who described 1968 as a golden age.